State v. Dunning

FOURNET, Chief Justice

(dissenting).

The right to regulate the traffic of liquor is an inherent police power of this state, and while, under the express provisions of the Constitution of 1921, Section 18 of Article 19, such power cannot be surrendered, it is within the province of the lawmaking body to delegate this power to the various political subdivisions of the state. This does not mean, however, that the legislature surrenders the power thus delegated and that it is not subject to recall or change at the will of the lawmaking body. State v. Gardner, 198 La. 861, 5 So.2d 132.

The majority, in reaching the conclusion — as did this court in State v. Bradford, 220 La. 176, 56 So.2d 145 — that ordinances prohibiting the sale of intoxicating liquors adopted pursuant to statutes enacted previous to the adoption of the Revised Statutes of 1950 remain in full force and effect and were valid under the provisions of the general saving clause, R.S. 1:16 — thus leaving the anomalous situation that those convicted under such ordinances are subject to fines not to exceed $500 and imprisonment of not more than 6 months, or both, whereas *216those convicted under ordinances adopted pursuant to the provisions of the Revised Statutes are subject to fines of no more than $100 and imprisonment of not more than 30 days, or both — failed to give proper consideration to the fact that the legislature, in adopting the Revised Statutes, in effect incorporated and continued the local option law in force previously by virtue of Act 372 of 1948 but omitted therefrom the provisions to be found in Section 17 of Act 372 declaring that “Nothing in this Act shall be construed or have the effect of vitiating or affecting any ordinance * * * previously adopted or enacted by any political sub-division declaring illegal or forbidding the manufacturing, producing, rectifying, blending, using, storing, distributing and selling of beverages containing alcohol of more than one-half of one per cent.”

It is obvious to me that the legislature, having pointedly omitted this provision, did so to avoid the unwarranted discrimination made possible by the inclusion of such a provision. At least, it is reasonable to assume that their action in deleting this clause was prompted .by such motive.

And if we are to construe the provision of R.S. 1:16, the general saving clause, as continuing in effect the ordinances adopted under previous laws (particularly when all acts on the subject matter were specifically repealed in the Revised Statutes, and more particularly Acts 15 of 1934, 17 of the 1st Extra Session of 1935, and 372 of 1948) it is our duty to follow the cannon of interpretation which requires that such construction not only be reasonable but lead to no absurd consequences. In my opinion, it seems reasonable to assume that the legislature, in the light of the above-mentioned deletion, intended to provide a uniform penalty for all such violations, that is, a maximum fine of $100 and imprisonment of not more than 30 days, or both. This, in my opinion, would be a reasonable construction of the saving clause, leading to no absurd consequences and consonant with sound logic and reasoning.